On Several Procedural Issues Of Derivative Action

Derivative action is also called representative action. It is a lawsuit pattern in which shareholder(s) would lodge a complaint against violators when company which were supposed to do so refused to or neglect to use its right, and obtained compensation belongs to the company. As a special litigation system, it has broken through the general rule of law in many aspects, and plays an important role in protecting the interests and rights of shareholders. Moreover, shareholder(s)'right to supervise the smooth operation of the company could be ensured, and the structure of corporate governance would be more perfect.From a comparative view, this dissertation gives an elaborate review on the Corporate Law and its relatives of America, Japan and Taiwan district of China, and expounds the basic theory of derivative action system. Then, this dissertation discusses some key and complex issues of derivative action, such as litigation rights, subjects of action, and the procedural restriction and stimulus mechanism. Meanwhile, the writer gives some suggestions on how to make the derivative action system in our law more perfect on a plane of procedure law.This dissertation consists of 3 parts,which are the introduction, the main text and the conclusion. And the main text includes four chapters.The first chapter is mainly about the fundamental theory of the system of derivative action. In this chapter, the concept of shareholder derivative action was firstly introduced, and then the Derivation, representation and altruistic, three characteristics of this law was discussed. In addition, this chapter briefly involves the historical evolution, the trigger requirements and the function of derivative lawsuit.The second chapter, one of the key parts of this dissertation, researches on the litigation rights of shareholder(s) in derivative suit. This chapter mainly discusses the foundation of the litigation rights of the plaintiff in shareholder derivative action. By the comparison and analysis to different doctrines,it is the author's conclusion that the foundation of the qualification for the proper party is legal litigation undertaking and the plaintiff is the person who is the legal litigation undertaking of the company .So shareholder(s) could take the right to file a derivative action.The author pays more attention to the subjects of derivative suit in the third chapter. In this chapter, the author discusses the scope of and the qualification restrictions on the complaint, the determination of the defendant, and the status of court, company and shareholder(s) in lawsuit. It is the author's opinion that China's legislation should model on continental legal system, make some improvements in joint action system and the third party without independent claim system of china's corresponding provisions. In detail, firstly divide the joint action system into quasi-necessary joint action and similar necessary one; secondly divide the third party without independent claim into quasi-necessary and accessorial third person (the third party purely has no independent claim).When other shareholders take part in the derivative action, it would be a similar necessary joint action. And company involved would be looked as accessorial third party if it sues for to participation to the lawsuit ongoing.The most important principle which should be followed in the design of derivative action system is to balance the effective supervision system and the restriction system of the abuse of sue as best as it could. Therefore, the author focuses on the stimulus mechanism and restriction mechanism in chapter four. The former includes the special payment way of case acceptance fee, the right of shareholders when they win and the plaintiff's right to gain compensation directly. In this part, the author makes some suggestions on the issue of case acceptance fee, etc. In the part of restriction mechanism of derivative action, the author mainly discusses the procedural prerequisite, warranty of litigation fees, the restriction on the litigation rights of the plaintiff shareholder(s) and the compensation issue when the complaint losses the lawsuit, then gives some personal suggestions on them.